Levelling-up and Regeneration Bill

Debate between Baroness Parminter and Lord Hope of Craighead

Report stage
Wednesday 13th September 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

I shall speak to my amendment, Amendment YYZB, to which the Minister offered her support. It proposes two brief additions to the new clause proposed in Amendment 247YY, prompted out of concern about the wording of the clause we are being asked to approve.

I make it clear that this amendment is a probing one only. I very much regret—this follows a point made by the noble Lord, Lord Deben—that we are being asked to deal with this at such short notice at Report, particularly in view of the importance of the points raised by the noble Lords, Lord Best and Lord Moylan. This is a great misfortune, because we should really be dealing with this in the ordinary way in Committee, when we have the freedom to propose and discuss amendments and improve their wording stage by stage. We are faced with a measure produced at Report, and my amendment is an attempt to probe and draw attention to defects, not to cure a basic defect in the way the whole process is being handled.

My wording, and the points I have mentioned in my amendment, have been reinforced by what was said by the Delegated Powers and Regulatory Reform Committee in paragraph 9 of its report: that the power proposed to be given to the Secretary of State by this clause is

“subject to little by way of constraint”.

That is a generous understatement, I suggest. It is a broad, open Henry VIII clause. In its full vigour as it stands, it lacks any requirement for consultation or any indication of the criteria that must be satisfied in this highly sensitive subject.

There is one other aspect of this clause that I, as one who believes in the quality and integrity of the legislation we are asked to approve, find very disturbing. This is a very controversial subject that has been worked through already, as the noble Baroness, Lady Jones of Moulsecoomb, pointed out in her reference to the Environment Act. The question raised in my mind when I saw that we were dealing with the whole issue of nutrients in water was, “What does the Environment Act say about it?” There is no indication in the Government’s new clause that that Act has been given any thought at all.

Water is dealt with in Part 5 of that Act, and the powers of the Secretary of State in relation to water quality are set out in some detail in Section 89. We find here a set of carefully designed powers that are combined with requirements for consultation before they are exercised. They also take account of the fact that some of England’s rivers flow into or have their source in Wales or Scotland, so there is provision for consultation with the devolved authorities.

There are other safeguards in that Act as well. Section 20 provides for Ministers making Statements to Parliament about Bills making changes to environment law. We have not had that, because of the way this has been handled. Of course, Section 22 provides for the establishment of the Office for Environmental Protection, with important regulatory and reporting powers. What disturbs me—I may be mistaken—is that all this seems to have been ignored by the Government in formulating this new clause. It is as if the environment protections, which we spent so much time two years ago discussing in great detail, in an Act which the Government themselves promoted, did not exist. I think that many of us remember the satisfaction we felt when that Act was eventually passed, because we had done such detailed work on improving the Act in the interests of our environment. Yet apparently—and I stress the word “apparently”—it has been ignored.

My amendment seeks in a modest way to meet the point that the Delegated Powers and Regulatory Reform Committee makes in paragraph 11 of its report about the warning by the Office for Environmental Protection. There appears to have been no public consultation prior to the publication of these new measures. The first paragraph of my amendment would require regulations made under this clause to be consistent with what Section 89 of the Environment Act requires, and the second would require consultation.

However, this is a probing amendment, and I will not be moving it when the time comes. The first reason for that is that I support those who argue that this new clause should not form part of the Bill. It is not just a matter of small amendments; it is a much more fundamental objection, as others have made clear. The second is that, quite frankly, I am not confident that my amendment, with its mere reference to Section 89 of the Environment Act, is an accurate way of trying to reconcile the clause with what is in the Environment Act. It requires more careful study, and simply to accept my amendment as the Government propose to do is not the way to deal with it.

I do not suggest, and I never did, that I have the complete answer to this; I simply raise issues for the Government to consider. If the Government succeed in the vote that will take place, then I urge them to consider an amendment along these lines at Third Reading. However, if they bring back the legislation at some later stage, as the noble Baroness, Lady Jones, contemplated, then I very much hope that they will pay attention to the points that my amendment raised.

[Baroness Parminter (LD)]

My Lords, in the spirit of brevity, I will not speak to the amendments to which I have given my name. However, I would like to address the amendments that the Government have brought forward, which, if accepted, will be a profound change in how we regulate for the environment in this country. To be clear, we are not talking about all water catchments or all houses. We are talking about the most environmentally sensitive sites: those which are home to our curlews, lapwings, and shelducks. These are our internationally and globally significant chalk streams—sites of greatest environmental sensitivity. That is what we are talking about, not the whole country and not all homes.

Here on these Benches, as on other Benches, we recognise the need for more homes. Like the noble Baroness, Lady Jones, I took slight exception to what was said by the noble Lord, Lord Best. The current situation around nutrient neutrality is not a ban on housebuilding. There is a system whereby, if you wish to build houses in a particular sensitive fresh-water area, you can do so if you buy credits to mitigate the damage you will cause. For example, in Poole harbour, one of our most magnificent sites for wildlife and wetland birds in this country, a proposal came forward to build homes. In 2021, a site of 420 acres was built in Bere Regis to mitigate the damage that would have been caused, and 2,111 homes were built. There is not a ban; there is a system of mitigation where the developers must pay—I will return to this point in a moment—to mitigate the environmental damage they are going to cause.

There may well be problems. It is a system that has been in existence for six years; all of us would accept that it is not perfect. Mitigation credits are not, perhaps, coming on as quickly as they need to. The guidance to local authorities about what is acceptable for mitigation may not be as clear as it needs to be. However, that does not mean that, at the 11th hour, the Government can suddenly throw in an amendment to a Bill. You collaborate; you consult with all the parties; you give adequate parliamentary scrutiny. Then, as the noble Lord, Lord Deben, said, I am sure Parliament would accept that.

We have heard a lot this afternoon already about a report which we are going to get from the Built Environment Committee. I will give you something from a report we have already had: the report of my committee, the Environment and Climate Change Committee, which has looked this year at how we will meet our 30 by 30 target, to protect our nature which is in such a dire state. We looked at the habitats regulations, which are what the government amendments will amend. We concluded, on a balance of the evidence, that those habitats regulations should be retained. However, we said that if they were going to be subject to amendment, because there were clearly some teething issues with this scheme, then any changes should not be

“subject to amendment without an appropriate degree of parliamentary scrutiny or where the protections afforded by the regulations are weakened”.

We can hardly call this process today an appropriate degree of parliamentary scrutiny. The Office for Environmental Protection has been clear: these government proposals will weaken regulations. Like the noble Lord, Lord Deben, I am distraught—I think that is the word I would choose—at how the Government have responded to the clear communication by the OEP, which was set up to be the watchdog for the environment in this country.

Retained EU Law (Revocation and Reform) Bill

Debate between Baroness Parminter and Lord Hope of Craighead

Consideration of Commons amendments
Tuesday 20th June 2023 Lords Chamber

[Baroness Parminter (LD)]

I rise briefly to add our Benches’ support, if the noble Lord, Lord Krebs, pushes this to a vote. His amendment is a canary in a coal mine—perhaps a Cumbrian coal mine. You put a canary down a coal mine when you want to test whether essential resources that you rely on are about to be lost, to be snuffed out. This is what this is. It is about not just the essential protections for our much-depleted nature, but the essential protections that we as humans rely on: water, air quality and all the ecosystem services that nature provides.

I use that analogy for another purpose, as well. You do not see the canary in the coal mine, but if you talk to the general public about puffins and other wildlife, and all the things they care for when they see them on TV programmes, they know that they want them protected, and they want the Government to act. But we are here at the coalface, mining through the amendments, and we can see the damage that this will do to the protections for people and the animals and wildlife they care for. We are here to bring that canary to the surface. We should do that and press the matter again.

[Lord Hope of Craighead (CB)]

My Lords, Motion B1, in my name, raises an issue that has been of great concern to many in this House from the outset in our examination of the Bill: parliamentary sovereignty. The clause that causes particular concern, and to which my Motion is addressed, is Clause 15, headed “Powers to revoke or replace”. All the powers that it contains are exercisable by statutory instrument alone, with no provision for active or meaningful scrutiny by either House. That amounts to what the noble Lord, Lord Anderson, described when the issue was before us two weeks ago—without any exaggeration, I think—as a delegated superpower.

It is worth taking a moment to think about the key words that are used to describe the extent of the powers conferred on a relevant authority by this clause. For our purposes, the relevant authority is a Minister of the Crown. Clause 15(2) states that the Minister

“may by regulations revoke any secondary retained EU law and replace it with such provision as the relevant national authority considers to be appropriate and to achieve the same or similar objectives”.

Clause 15(3) states that the Minister

“may by regulations revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.

The subsection (2) power extends not just to achieving the same objectives but to achieving objectives that the Minister considers to be similar. The decision as to whether they are similar or appropriate, about which there may reasonably be more than one view, is left entirely to the Minister.

Subsection (3) goes even further: it extends to the making of such alternative provision as the Minister considers appropriate. There is no limit here to the objectives that are to be achieved. They do not need to be similar—there is no limit to that extent—so they could be different from those of the secondary retained EU law that is being revoked. Again, there could reasonably be more than one view as to whether the alternative provision, whatever it may happen to be, was appropriate.

It is worth reflecting for a moment on the subject matter of what is open to revocation and replacement in the exercise of these powers. This is not simple, routine stuff for which delegated legislation is unquestionably appropriate. It extends to, among other things, major instruments of policy. It extends to fundamental rules relating to public health, trade and the environment, which were handed down to us by the EU and with which we have lived for several decades. It includes, for example, agricultural support, blood safety, fisheries management, food composition standards, nutrition, resources and waste, and the control of ozone-depleting and radioactive substances. Those are just some examples.

Your Lordships might consider it rather strange, given the nature and extent of what is involved, that neither House of Parliament can play any kind of active role in the scrutiny of these regulations. It really is a take-it-or-leave-it system dictated to Parliament by the Executive. The objections to this, which I need not repeat, have been set out many times, and that is what my amendment seeks to address.

I recognise that the previous amendments, which were moved first by me and later by the noble Lord, Lord Anderson, proposed a system that the Minister was right to describe as novel and untested. What I am now proposing is based on a system, as the Minister has pointed out, known as the super-affirmative procedure, which was enacted by Section 18 of the Legislative and Regulatory Reform Act 2006. I shall explain briefly what this involves.

It applies only to regulations made under Clause 15. It proposes a Commons committee—not a Joint Committee, as previously suggested—to sift regulations made under the clause in the light of an explanation by the Minister as to why the regulation is considered appropriate. If, but only if, the committee reports that there are any regulations to which special attention should be drawn, the Minister must arrange for them to be debated on the Floor of each House. The Minister must then have regard to any resolution of either House and may, but is not required to, propose a revised proposal in the light of what has been resolved. The procedure for approval in both Houses thereafter is the affirmative procedure. Finally, the committee may recommend that the Minister’s proposal should not be proceeded with, but the House of Commons has the last word, as it can reject that recommendation. If it does that, the regulations may be laid.

This is a relatively light-touch procedure, which gives Parliament some measure of oversight of what has been proposed. I offer it as a compromise, in the hope that the Minister, despite the remarks he made at the outset of this debate, will feel able to give it serious consideration. At the heart of it all is an issue of principle, which is of basic concern to this House and the other on their entitlement to take an active part in the major exercise proposed. It is in that spirit that I propose to test the opinion of the House, if necessary, when the time comes.